Defenses In Defamation Suits

Submitted to :

Mr. Deepak Kumar

Assistant Professor

Submitted by :

Aman gupta

B.A. LL.B (Hons.)

Semester -3, Section -B Roll no. – 17

Date Of Submission – 30 oct, 2021

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR , CHATTISHGARH
 Table of Contents

INTRODUCTION…………………………………………………………………………3

OBJECTIVES OF STUDY………………………………………………………………..4

RESEARCH METHODOLOGY………………………………………………………….4

REVIEW OF LITERATURE ……………………………………………………………..5

CHAPTER 1 DEFAMATION …………………………………………………………….6

CHAPTER 2 ESSENTIALS OF DEFAMATION ………………………………………...8

CHAPTER 3 DEFENSES AVAILABLE

IN THE DEFAMATORY SUITS………………………………………………………….11

CONCLUSION………………………………………………………………………….…15

REFERENCES………………………………………………………………………….,…16

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 INTRODUCTION

A man want a good reputation in society and for which he do working hard and precautioned to
do not something wrong which is wrong as per society because reputation is most valuable
things for a man and every man has right to protect his reputation in every possible ways. This
right is his personal right which is jus in rem i.e. a right against all person in world. Defamation
is oral or written false statement made by a person which want to harm the reputation of another
person. A malice Statement which is written and published it is known as libel and the malice
statement which is spoken by someone known as slander. These are two ways of defamation.
Defamation occur to any person when there are some essential. You can’t say I am defame by
someone who stated malice statement at front of me. Defamation not occur until the malice
statement is known by any third person which have a right thinking in the society and in the eyes
of right thinking people your reputation get lowered, this is actually defamation. But it is not
considered as defamation when you do a fair and bonafide comment on some issue, or your
statement is justified by truth or you have absolute or qualified privilege by the government to
spoke or written. These are some defense in which you can made a statement against anyone but
these defenses only be pleaded when there is statement for public goods not for itself unless you
are in categories absolute previlaged groups.

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 OBJECTIVE OF STUDY

 The objective of the study is to analyzing the meaning of defamation and various types of
defamation.
 And to study about the different elements of defamation which require to proof in defamation
suit.
 And to know about various defenses which is available if someone alleged in a defamation
charges.
 And to know the rational of various judgement held by different court in defamation suits.

RESEARCH METHODOLOGY

This project is of doctrinal in nature. The project implies secondary sources for fulfillment of the
objective of the study . The project is descriptive and analytical in nature and various literature
have been cover from journals , news websites , books , various published report , research work.

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 Review of literature

It is a well established rule in great majority of common law jurisdiction that in the defamation
suit truth is an absolute defense to a action against libel as well as slander in civil law. It is
irrelevant that the defendant published a defamatory statement out of pure ill will , if the
statement which is published are true according to English and American court views. Even the
defandeant is soo far protected when he not sure that the statement is true if in reality the
statement is true. It is clear from that such rule create a wide areas of activities of those who aeek
to destroy the reputation of his fellow members. Using several recent court judgement as
references the basis for proper extent of privilege granted the excutive officer for defamatory
statement made in his official capacity. Analysis suggest that the absolute previliege accorded
judges is not soo refined, and a new approach should be taken to provide more satisfactory
resolution of conflicting interest involved.

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 CHAPTER – 1

Defamation

Defamation occur when a man made a oral or written statement which is false statement about
another with intention to harm his reputation. The word defamation means the offense of
harming a person reputation by making statement against him. The statement can be made by
either writing and published or by spoken statement in public at large.

Slander – When a person spoken defamatory statement like it may be in spoken by words or
gesture.

Libel – Libel is when a person using defamatory statement with help pf some permanent form
like writing, in the form of picture, painting or statute.

Like in the film not only the photographic contents but also the speech which is synchrodynes
with it also known as libel. This observed by Slesser L. J. in case of Youssoupoff vs M.G.M
Pictures Ltd that a photographic part of a films is a permanent content which is seen by eyes
and has proper evidence for defamation.

For testing libel and slander another method is that libel is seen by eyes and have in permanent
form and slander addressed by ears but the confusion arises when a recorded gramophone are
there because it addressed to ear but at the same time it also in permanent form.

In English law, they are marked a difference between libel and slander. In there criminal law
only libel is an offence and slander are not. In tort law, slander is only actionable but only if you
have proof of special damage. But in Indian law, they made no difference between libel and
slander and both having criminal offence as per section 499 of IPC.

In India both libel and slander are actionable and for establishing this things many cases are
there:

In case of Parvathi vs Mannar, it was held that, English law require proof for the damage in
case of defamation which is made by oral, being founded on no reasonable basis, should not
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opted in British India. Also in case of Hirabai Jehangir vs Dinshaw Eduji and A.C. Narayan
Sah vs Kannamma Bai, the Bombay and Madras high court held that when there is a case of
imputation of unchastity of a women by spoken word, here the wrong was actionable without
having any proof of damages.

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 CHAPTER– 2

Essentials of defamation

 Firstly, it should be a defamatory statement.

 Secondly, the statement is for the plaintiff and statement should be understood by
a reasonable person.
 The statement must be communicated or published to third person other than
plaintiff.

 Statement must be Defamatory – Statement which hurt or harm the plaintiff

reputation is known as defamatory statement. Defamation is a publication of
statement which tends to lower the person reputation in the right thinking
members of the society or which tend to make them avoid that person(plaintiff). A
defamatory statement made in different ways like it may be oral, in writing,
printed or by picture, statues or by some conduct also and this defamatory words
considered as defamatory is depend upon how the right thinking person take it. If
the defamatory statement is made any harm to the reputation of plaintiff there are
no defense available. When a statement causes injury to anyone feeling regarded
with feeling of hatred, contempt, fear or dislike, it is defamatory in nature. The
main essence of defamation is to harm the reputation of a person.

In case of Ram Jethmalani vs Subramaniam Swamy, in this case a commission

was inquiring about the fact and circumstances related to late Shri Rajeev Gandhi.
The defendant of this case at a press conference alleged that the CM of Tamil
Nadu had a prior information about that LTTE cadre made a assassination bid on
the life of late Rajeev Gandhi. The plaintiff in this case was engaged in represent
the tamil nadu CM. As part of his professional work he cross examined the

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 defendant of this case. During the pending proceeding of court defendant alleged
that plaintiff had been receiving money from LTTE. This statement made by
defendant was held defamatory by the court and court said that the defendant
exceeding his privilege and this is by itself was a evidence of malice. So the
court held that continuing the professional standing of plaintiff and his in socia
status, Delhi high court awarded damage of 5 Lakh.

 The statement is for plaintiff – the plaintiff has duty to prove to the court that
the statement of which he complain only refer to him. In that position it is
irrelevant he didn’t have intention to defame the plaintiff. If a person to whom a
defamatory statement was published could reasonably infer that statement is for
plaintiff then the defendant would surely liable.
In case of Hulton Co. vs Jones, defendant published a article in newspaper,
purporting to describe a festival. In the article aspersions were cast on the moral
of a person named Artemus jones, said that he is a churchwarden and being
present in the festival. On the basis of this defamatory statement, one Artemus
jones who was a famous barrister bought a suit against the defendant. The
defendant pleaded that jones was a fictional character for this article and he never
know the plaintiff and not intended to defame him. Every contention of defendant
not entertained by court and the defendant was held liable.
But Indian law has different view on this matter, in case of T.V. Ramasubha
Iyer vs A.M.A Mohindeen the question come to the madras high court that
whether the defendant liable for the defamatory statement which he made without
an intention to defame. After referring the English authorities, the court come to
conclusion that the case of Hulton vs Jones where the majority court judgement
stated that innocent publisher is also guilty for defamatory statement was against
the principle of justice, equity and consciences and this types of irrational
judgement was not applicable in india. The Madras high court held that in india
there was no liability of a person who published innocently.

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 The statement must be published – Publication means the defamatory statement
known by any third person other than plaintiff and there is no civil action are
arises unless the statement published. Dictating a letter to the plaintiff is not a
publication or sending a defamatory letter to the plaintiff itself is not come under
defamation. Also if the third person wrongfully reads the letter for the plaintiff
then defendant would not be liable. Defamation come when a defamatory letter
sent to plaintiff is likely to read by somebody else there is defamation.
Defamation arises when a third party knowing about the false statement made for
plaintiff and injury the reputation of plaintiff.
In case of Mahendra Ram vs Har Nandan Prasad, the defendant sent a letter to
plaintiff in Urdu language. The plaintiff didn’t understand the language therefore
the letter read by third person. In this case it was held that the defendant is not
liable unless it was proved that at the time of writing letter defendant know about
that plaintiff didn’t know the urdu script and letter must by read by some third
person.

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 CHAPTER – 3

Defenses Available in the Defamatory Suits

There are many defenses which are available for action of defamation suits and they are as
follows :

1. Justification or truth – When there is a civil action for defamation occur there is always
a defense of truth. First exception of section 499 of IPC has that although being truth, the
imputation must be shown that the statement only for public goods at large but in a civil
law only thing is required to proof the truth is a good defense. But even truth is not a
complete defense. Its always needs to prove that the statement is for public goods and this
was held in the case of Subramanian swamy vs union of India.
If the defendant not able to prove the truth, this defense cannot be availed. In case of
Radheshyam Tiwari vs Eknath, in this case the defendant alleged several charges on
plaintiff that plaintiff issued false certificates, taking bribe, being corrupt but in the court
proceeding defendant not able to prove any charge on plaintiff that he alleged therefore
he held liable for defamation.
Even this principle apply on test of justification by truth, though the incident reported by
police, or may be a serious dispute, reporting of such distorted or deviated with
comments without any verification of facts is also amount to defamation. In the case of
Dr. Suresh Chandra vs Panbit Goala it is held that any such defamatory statement made
in publication can’t be ward off under security of freedom of press of article 19 (1) (a) of
the constitution of India.

2. Fair comment – making a fair comment on a matter which is related to public interest is
defense under the action for defamation. But for avail defense under this tab there are
need to fulfill some essential: firstly, it’s a comment(expression of opinion on certain
fact) not just an assertion of facts, secondly the comment must be fair in nature and last
the matter of in which the comment is made must be of public interest.

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 Comment is an expression of opinion of certain fact and it is different from making a
statement of fact. A fair comment is a defense itself where if it is a statement of fact then it
can be only justify if justification or privilege proved. A statement is fact or comment depend
on the language used in stated. For example – A says about a book published by B that B’s
book is foolish, he must be a weak man and also a man of impure mind. These are comments
based on B’s book and here the A will be safe if he act in good faith but if A just says B’s
book is foolish and he is indecent. This is not a comment but statement of fact and here the
defense can’t be pleaded.

A comment is not being faired when it come from fact which if false. If the fact are true and
it justify the comment which is truly stated the defense of fair comment can be taken even
though the some facts are not proved. The fair comment depend upon the honestly opinion of
defendant, only thing is material is the opinion of the commentator. In case of K.S. Sundram
vs S. Viswanathan the Madras high court dismissing the suit of plaintiff for damages the
court held that in the article nothing could be termed as defamatory against the plaintiff and
there are no personal animus are found and in absence of same, the article was a fair
comment about the performance of company and not a defamatory statement at all.

3. Privilege –sometime law give some privilege in some occasion right to free speech
outweigh the defamation right of plaintiff. Such occasion knowns as privileged occasion
and in this occasion a false, defamatory statement is not actionable. In law privileged are
of two types: absolute and qualified.

Absolute privilege- In this type of privileged no action lies for making a defamatory
statement even no matter the statement is false or malicious in nature. In such types of
matter the demand is for public interest and not for individual interest and in such
occasion right of reputation give way to freedom of speech. There are different sectors
which have absolute privilege:

Parliament proceeding – in the constitution of India it is provided in article 105(2) that

(a) statement made by a member of either the houses of parliament and (b) the publication by or

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under the authority of either house of parliament of and report, paper , vote or proceeding, can’t
be questioned in court of law and a similar privilege given to state legislature in article 194(2).

Judicial proceeding – no action are taken against judges, counsels, witnesses or parties for
written or spoken any statement in course of any proceeding before the court, even the words
ismalicious in nature without any justification or excuse, However If the words which was
spoken bycounsels are not having any relevance to the matter, in such condition defense can’t be
pleaded. Also when the remark by witness is irrelevant from the matter of case is not a privileged
and this was held in case of Jiwan Lal vs Lachhman Das, the witness lachhman remarked
certain allegation on jiwan lal. Action against Lachhman Lal was taken but he pleaded the
defense of absolute privilege as he stated the statement before a court. The high court considered
the remark of defendant wholly irrelevant to matter under enquiry and court rejected his defense
plea and held defendant liable.

State commission – A statement made by a officer of state in course of his duty is a absolute
privilege but it should be for reason of public policy and such proceeding also extends to military
and naval duties also. Communication between minister for state matter is also come under
absolute privilege.

Qualified Privilege – In qualified privilege, it is essential to take that the statement is made
without any malice and for claiming such defense it is must be an occasion to make such
statement. Generally to avail this privilege either the statement is made for discharging the duty
or protection of interest, or publication in the form of parliamentary or judicial proceeding. To
avail this defense there are some requirement which must be fulfilled.

(1) Statement should be for discharge of a duty or protection of interest- A qualified

privilege is where the person make a communication with a interest or legal duty, social,
moral ,to make it to the person whom it made has corresponding interest or duty to
receive it. here the reciprocity is necessary. Section 499 of IPC contain some privilege in
their exception provided that it is not a defamation to make a imputation on the character
of another provided that statement made in good faith or for public good.

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 A former employer of a company have a moral duty to told about his servant character to
the person going to employ him and also the person who receiving the information have
interest. In this occasion defense can ne pleaded but if the former employee without any
enquiry published about servant character with a motive to harm his reputation. In this
case defense of qualified privilege can’t be taken. In case of publication of a libellous
matter in a newspaper, duty of public has to be proved and if the duty is not proved, plea
of qualified previlige failed and the plea will also fail if the plaintiff prove that there is
presense of evil motive or malice in the publication of defamatory matter, and same was
held in case of R.K. Karanjia vs Thackersey.

(2) The statement should be without malice- the defense available under this tab when the
statement was made without malice. The presence of the malice destroy this defense. The
malice in relation to this privilege means an evil motive. In case of Clark vs Molyneux
Brett, L.J. explain the position: if the occasion is privileged it is for a reason and
defendant is only entitled to protection under privileged, if he used the occasion for that
reason. The person not entitled if he uses the occasion in a wrong motive. If he use the
occasion for his anger or malice, he not using occasion of privileged but actual doing the
malice which is popular in general.

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 CONCLUSION

In a society reputation is much important for people which want to live a dignified life
and law have to protect the reputation of a man and for protecting people reputation there
is law of defamation which serve the purpose to protect you when anyone going to harm
your reputation by made some false statement against you. However, these law of
defamation is still believe in the freedom of speech and expression, as people can make a
fair opinion of them. This law always protected the reputation of people from a unfair
speech made by some one. The supreme court give various judgement in which he stated
that ambit of freedom of speech is sanctified but not absolute. The right to life which is
prescribed under article 21 of the constitution of India also include right to reputation of a
person and this can’t be violated at any cost of the freedom of speech. No law India any
power to any of its people that you can made any statement which harm the reputation of
someone until they are true, fair , privileged and for the public interest.

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 REFERENCES

 Dr, R.K. Bangia, Law Of Torts, 170-176(Allahabad Law Agency 2021).

 Elements of Defamation - Libel and SLander - Defences available in india,
https://blog.ipleaders.in/law-of-defamation-in-india/ (last visited on 17 oct 2021).
 Youssoupoff vs M.G.M Pictures Ltd, (1934) 50 T.L.R. 581.
 Parvathi vs Mannar, I.L.R. (1885) 8 Mad. 175.
 Hirabai Jehangir vs Dinshaw Eduji, I.L.R (1927) Bom. 167.
 A.C. Narayan Sah vs Kannamma Bai, I.L.R. (1932) 55 Mad. 727.
 Ram Jethmalani vs Subramaniam Swamy, A.I.R. 2006 Del. 300.
 Hulton Co. vs Jones, (1910) A.C. 20.
 T.V. Ramasubha Iyer vs A.M.A Mohindeen, A.I.R 1972 Mad. 398.
 Mahendra Ram vs Har Nandan Prasad, A.I.R. 1958 Pat. 445.
 Subramanian swamy vs union of India, A.I.R. 2016 S.C. 2728.
 Radheshyam Tiwari vs Eknath, A.I.R. 1985 Bom. 285.
 K.S. Sundram vs S. Viswanathan, A.I.R. 2013 (NOC) 216 (Mad).
 Jiwan Lal vs Lachhman Das, A.I.R 1929 Lah. 486.
 R.K. Karanjia vs Thackersey, A.I.R 1970 Bom. 424.

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